People v. Shief

62 N.E.3d 1154

407 Ill.Dec. 232

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Anthony SHIEF, Defendant–Appellant.

No. 1–14–1022.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 8, 2016.

Michael J. Pelletier, Patricia Mysza, and Christopher Kopacz, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Hareena Meghani–Wakely, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice ELLIS delivered the judgment of the court, with opinion.

¶ 1 Defendant Anthony Shief was convicted of the first-degree murder of Leroy Willis in 2009. In 2012, defendant mailed a postconviction petition to the clerk of the circuit court of Cook County, but the clerk did not docket his petition. After inquiring into the status of his petition several times, defendant refiled his petition one year later. The petition argued that the prosecution had knowingly presented perjured testimony at defendant's trial, that the trial court erred in denying his motion to suppress identification testimony, that the witnesses against defendant were not sufficiently credible to prove him guilty beyond a reasonable doubt, and that his appellate counsel was ineffective for failing to raise these issues on direct appeal. The trial court summarily dismissed the petition.

¶ 2 In this appeal from the summary dismissal, defendant raises two issues. First, he argues that we should vacate the dismissal of his petition and remand for second-stage postconviction proceedings because the clerk failed to promptly docket his petition pursuant to section 122–1(b) of the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1(b) (West 2012)). Second, he argues that the trial court erred in summarily dismissing his petition because it stated the gist of a claim that his appellate counsel was ineffective for failing to raise a challenge to the admissibility of gang evidence presented at defendant's trial.

¶ 3 We affirm. Defendant is not entitled to remand for second-stage postconviction proceedings, because the statute requiring the clerk to promptly docket his petition is directory, not mandatory. The statute prescribes no consequences for the clerk's failure to promptly docket a petition, and defendants' rights to timely consideration of their petitions will not be injured by a directory reading.

¶ 4 With respect to the merits of defendant's petition, we conclude that defendant has forfeited his argument that his counsel on direct appeal was ineffective for failing to challenge the gang evidence because he did not raise that argument in his petition. And even if defendant had raised that argument, we would hold that defendant failed to state the gist of an ineffectiveness claim because the gang evidence was admissible.

¶ 5 I. BACKGROUND

¶ 6 We previously discussed the evidence presented at defendant's trial in our order affirming defendant's conviction on direct appeal. People v. Shief, No. 1–09–1577, 2011 WL 9692703 (2011) (unpublished order under Supreme Court Rule 23 ). We recount the evidence only to the extent it is necessary to understand the issues relevant to defendant's postconviction petition.

¶ 7 At trial, the State's evidence showed that defendant shot Willis with a sawed-off shotgun in the early morning hours of June 8, 2002, as defendant attempted to hijack the car that Willis had parked at a department store. Janice Minnis, who was with Willis when he was shot, described the incident but could not identify the shooter because she was intoxicated at the time. Darrell Harvey, who observed the shooting as he was driving by, identified defendant as the shooter. Defendant's fingerprints were found in and outside the car.

¶ 8 The State also presented the grand jury testimony of Adam Pegues. Before the grand jury, Pegues testified that, in 2002, defendant had admitted to shooting someone in the department store parking lot during a robbery attempt. At the time Pegues testified before the grand jury, he was facing charges for a Class X felony. (The record does not reflect the specific charges that Pegues faced.) At trial, Pegues recanted his grand jury testimony and testified that defendant never told him that he had shot anyone. Pegues said that he had testified to the contrary in front of the grand jury because the detectives who had questioned him had threatened and beat him.

¶ 9 When the State began to question Pegues about his former gang membership, the court interjected and told the jury not to consider evidence of defendant's gang membership as evidence that he shot Willis:

“I am going to allow the introduction of this gang membership not as evidence against [defendant] because it is not. I am indicating to you right now this is not evidence of his guilt, [defendant's] guilt in any way. I believe it is going to be at least asserted at this point that they are members of the same organization. Any bias, and that's for you to decide whether or not it exists, that might incur because they are members of the same organization is a question for you to consider as it relates to the testimony offered. But you may not, and I am emphasizing this, not consider membership within this organization as evidence of guilt on the part of [defendant]. Do you all understand that? They all answered yes.”

¶ 10 In his grand jury testimony, Pegues testified that he and defendant were both members of the Gangster Disciples street gang in 2002. At trial, Pegues admitted that he had been a member of the gang “a long time ago” but said that he did not know whether defendant had been a member. Then the State questioned Pegues about the possibility of retaliation against gang members who testified against other gang members:

“Q. Having been a member of the Gangster Disciples street gang, the gang doesn't like it when you testify against a fellow member in court, correct?

A. I'm not a member.

Q. You were a member?

A. I been out of the association for years. I gave my life to God. This is what I do. No more associating.

Q. There is no question pending. When you were a member of the Gangster Disciples street gang, the gang didn't like it when you testified in court against a fellow member, correct?

A. I don't know anything about that.

Q. You didn't know anything about the gang rules?

A. Gangs snitch on each other all the time. What that got to do with it?

Q. Would they pat you on the back if they knew that you testified against someone in court that was a Gangster Disciple?

A. If I'm no longer associated with that gang why should it matter to me?

Q. Back then when you were a member of the Gangster Disciples it mattered if you testified against someone in the gang, correct?

A. A long time ago, yes.

Q. They didn't throw a party for you and say good job for testifying against one of our [sic ] fellow members, right?

A. Yes.

Q. They threw a party for you?

A. No.

Q. So it was a bad thing, right?

A. Yes.”

Pegues never directly testified that he had been threatened with retribution for testifying against defendant or that the Gangster Disciples regularly retaliated against members who testified against other members.

¶ 11 In its rebuttal closing argument, the State argued that Pegues recanted his grand jury testimony because, when called to testify “against his fellow [G]angster [D]isciple street gang member, he [would not] do it.” The State added that there were “ramifications for testifying against another [G]angster [D]isciple,” even though Pegues would not “get up there and say it.” The State urged the jury to credit Pegues's grand jury testimony, instead.

¶ 12 The jury found defendant guilty of first-degree murder. Defendant filed a posttrial motion that alleged in part that the trial court had erred in permitting the State to introduce evidence of his membership in the Gangster Disciples. The trial court denied the motion and sentenced defendant to 75 years' incarceration.

¶ 13 On direct appeal, defendant raised three issues: (1) that the trial court erred in precluding him from impeaching Harvey with evidence that Harvey had a pending charge of driving under the influence at the time of the shooting, (2) that the trial court erred in precluding him from introducing testimony from the 911 operator that Harvey was “possibly drunk” when he reported the offense, (3) that his sentence was excessive, and (4) that his mittimus should be corrected. This court affirmed defendant's conviction and sentence and corrected defendant's mittimus. Shief, No. 1–09–1577.

¶ 14 On December 5, 2012, defendant mailed a postconviction petition to the clerk of the circuit court of Cook County. The clerk stamped the petition, “received,” on December 11, 2012, but did not docket it. About three months later, defendant wrote to the clerk asking for “an update [on the] status [of his] petition.” Defendant also wrote the clerk in May 2013 and September 2013, asking for updates on the status of his petition. In response to his September 2013 letter, the clerk wrote, “No P/C ever filed.”

¶ 15 Defendant mailed his petition to the clerk again, including an explanation of the clerk's failure to docket his petition and his correspondence to the clerk. The clerk stamped the petition “received” on November 27, 2013, and docketed the petition on December 2, 2013.

¶ 16 The petition raised four issues: (1) that the prosecution had knowingly presented perjured testimony at defendant's trial, (2) that the trial court erred in denying his motion to suppress identification testimony, (3) that the witnesses against defendant were not sufficiently credible to prove him guilty beyond a reasonable doubt, and (4) that his appellate counsel was ineffective for failing to raise these issues on direct appeal.

¶ 17 In discussing the insufficiency of the State's evidence, defendant argued that it was likely that Pegues had testified falsely in front of the grand jury in order to curry favor with the prosecution in his pending Class X...